THE NATION; Gay Marriage Through a Black-White Prism

By ADAM LIPTAK

Published: October 29, 2006

IN 1947, the county clerk in Los Angeles refused to marry Andrea Perez and Sylvester Davis. They were of different races, and a California law said that ''all marriages of white persons with Negroes, Mongolians, members of the Malay race or mulattoes are illegal.'' The next year, the California Supreme Court, by a vote of 4 to 3, struck down that law in Perez v. Sharp.

In 2003, in another 4-to-3 decision, the Massachusetts Supreme Judicial Court authorized gay marriages, and it invoked the Perez case as a model.

Last week, in a third 4-to-3 decision, the New Jersey Supreme Court stopped just short of endorsing gay marriages. It instructed the State Legislature to provide gay unions with a full complement of legal rights but said that the question of whether to call such unions ''marriages'' was a political, not judicial, one.

The New Jersey court did not mention the Perez case by name and it said that interracial marriage was not a useful touchstone in thinking about same-sex marriage.

But people on both sides of the same-sex marriage issue say there are important lessons from the earlier debate over laws banning interracial marriages, about the reasoning in the Perez decision and about how, over two decades, that decision came to be accepted in the courts, in state legislatures and in the popular culture. Unsurprisingly, they differ about what those lessons are.

Gay-marriage advocates say the logic of the Perez decision applies directly to gay unions. After all, they point out, the decision said that ''the essence of the right to marry is freedom to join in marriage with the person of one's choice.''

Chief Justice Margaret H. Marshall of the Supreme Judicial Court of Massachusetts, writing for the majority in the 2003 decision, agreed. ''In this case, as in Perez,'' she wrote, ''a statute deprives individuals of access to an institution of fundamental legal, personal and social significance -- the institution of marriage -- because of a single trait.'' It made no difference, she wrote, that one trait was skin color and the other sexual orientation.

Advocates for gay marriage say there is much to be learned from Perez. ''No one is saying that the experiences of racial minorities are identical to the experiences of same-sex couples,'' said Evan Wolfson, executive director of Freedom to Marry. ''There are always differences, but there are profound similarities.''

Opponents of gay marriage, on the other hand, say the judicial and legislative aftermath of Perez is more telling than the decision itself. Although 29 other states had laws barring interracial marriage at the time of the Perez case, no other state supreme court followed California. Instead, over time many state legislatures repealed the bans; in some states the laws remained on the books, but went largely unenforced.

In the end, it took two decades before the United States Supreme Court struck down in 1967 all of the 16 remaining antimiscegenation laws, in Loving v. Virginia, involving a Virginia couple who had been convicted of violating that state's interracial marriage ban.

This history, opponents of gay marriage say, shows that the Perez court usurped the democratic process, imposing a decision that most of the country, however unfairly, was not ready to embrace.

Maggie Gallagher, the president of the Institute for Marriage and Public Policy, which opposes gay marriage, said the contrast between the political landscape when the Supreme Court acted in 1967 and that facing proponents of gay marriage today is stark and telling.

''When the court moved to strike down the interracial marriage laws,'' Ms. Gallagher said, ''the democratic process was in the process of getting rid of these laws. What's happening now is exactly the opposite: more and more states are moving to protect marriage.''

In last week's decision from New Jersey, the justices in the majority tried to find what they considered middle ground. They affirmed gay couples' right to equal treatment, even as they said there was no constitutional right to same-sex marriage. Writing for the majority, Justice Barry T. Albin noted that the Loving case concerned heterosexual couples facing ''intolerable racial distinctions'' and did not apply to sexual orientation.

The fate of marriage in the courts may be about to come full circle. In the next year or so, the California Supreme Court will hear a gay-marriage case. Ms. Gallagher said that if that court -- the court that decided Perez almost 60 years ago -- rejects same-sex marriage, ''we're out of the gay-marriage question for 10 years.''

That may be an overstatement, as challenges are pending in Connecticut and Maryland, too, and the New Jersey Legislature may yet allow gay marriage by statute.

Although the United States Supreme Court in 2003 struck down a Texas law making gay sex a crime, few experts believe that the court is poised to rule in favor of gay marriage anytime soon. ''As I look at possible votes on the Supreme Court,'' said Andrew Koppelman, a law professor at Northwestern who supports gay marriage, ''I have a lot of trouble getting to one.''

But time may be on the side of gay marriage, he added, noting that two decades passed before the Supreme Court, in Loving, got around to endorsing the decision in Perez.